State v. Potter , 13 Kan. 414 ( 1874 )

The opinion of the court was delivered by

Brewer, J.:

1. Evidence of character of deceased. The appellant was convicted in the district court of Atchison county of the crime of murder in the second degree, and sentenced to the penitentiary for ten years. From this he has appealed to this court, and alleges numerous errors in the proceedings of that court. And first, he complains that that court erred in overruling a motion to quash the information. We do not think the objections made to the information are well founded, and hence see no error in the rulings on the motion to quash. Again, he insists that the court erred in allowing the state . _ a _ _ ° _ ¶ to introduce evidence of the character of the deceased as a quiet and peaceable man. It appears that the deceased was killed in an affray — that this was the second quarrel upon the same afternoon between the deceased and defendant, others participating. The first quarrel took place shortly after the parties left Atchison to go to their respective homes, each in his own wagon, and with two companions. No serious injury was done to either of the parties at this time. At its close the deceased drove ahead with his wagon, and the parties lost sight of each other. After driving some miles the deceased stopped beside a field where one of his sons was at work, and while there the other wagon with the defendant came along, the quarrel was resumed, and in it the deceased was struck on the head and elsewhere with a piece of a rail or club and so injured that he died shortly thereafter. On the trial and before closing their case the prosecution was permitted over objection to ask witnesses who had testified that they knew the deceased, this question: “State if you knew his general reputation for being a peaceable, quiet and law-abiding citizen.” And the witnesses testified that he was a peaceable, quiet and law-abiding man. No attack was made by defendant at any time during the trial on the character of the deceased, and no attempt to show that he was a quarrelsome or turbulent man. The question then is fairly presented, whether the prosecution on a trial for murder may, in the first instance, and as a part of their case, show the character and reputation of the deceased. We do not understand counsel for the state as claiming that such testimony is admissible in all cases, but only in cases where there is a doubt as to whether the killing was done in self-defense, and where such testimony may serve to explain the conduct of the deceased and is therefore fairly a part of the res gestee. In such cases it is said that the authorities hold that the defendant may show the bad character and reputation of the deceased as a turbulent, quarrelsome man. See among other authorities, Franklin v. The State, 29 Ala., 14; The State v. Keene, 50 Mo., 357; Wise v. The State, 2 Kas., 429; The People v. Murray, 10 Cal., 309. And if the defendant may show that the deceased was a known quarrelsome, dangerous man, why may not the state show that he was a known peaceable, quiet citizen? The argument is not good. The books are full of parallel cases. The accused may in some cases show his own good character. The state can never in the first instance show his bad character. A party can never offer evidence to support a witness’ credibility until it is attacked. The reasons for these rules are obvious. Such testimony tends to distract the minds of the jury from the principal question, and should only be admitted when absolutely essential to the discovery of the truth. Again, the law presumes that a witness is honest, that a defendant has a good character, and that a party killed was a quiet and peaceable citizen, except so far as the contrary appears from the testimony in the case; and this presumption renders it unnecessary to offer any evidence in support thereof. No authorities have been cited sustaining the admission of such testimony, and the following are in point against it: Bew v. The State, 37 Ala., 103; Chase v. The State, 46 Miss., 707; Pound v. The State, 43 Georgia, 128. For the same reasons the court erred in permitting the state to offer evidence of the character and reputation of Polk Keeley, a son of the deceased, who took part in the last affray.

2.Hearsay*, not Another error complained of is, in admitting hearsay testimony. The facts are these: The places of the two affrays were about four miles apart. The time between them about an hour. After the deceased had reached the place of the second affray, Mike Brannon and John Keeley, who had been in the wagon with him, got out and went over into an adjoining field where Polk Keeley was at work. When Polk Keeley was on the stand he was asked what Mike Brannon and John Keeley or either of them told him at that time. This question was objected to, but the court overruled the objection. The witness then testified that Mike Brannon told him “ that the Potter boys had thrown a rock at father, and hit my brother John Keeley,” and “that George Potter claimed that my father had run into Mr. Doyle’s wagon, but that he did not.” He also testified that his father called to him to come, and said that the Potter boys were going to-kill him. At these times the Potter boys were not in sight or hearing. This testimony was admitted as a part of the res gestee. In this we think the court erred. The interval between the two affrays was so great, the separation between the parties so complete, that we cannot consider the one a mere continuation of the other to such an extent as to make all the statements and conversations of the deceased and his companions in the interval, and in the absence of the defendant, a part of the res gestee. It seems to us that such testimony was plainly hearsay, and ought not to have been admitted. It seems probable, too, that part of it at least might have prejudiced the case against the defendant.

3.Self-defense; danger to be apprehended. Appellant also complains that the court erred in giving and refusing instructions. Counsel in their brief call attention to quite a number, and in many instances have pointed out wherein as they think consists the error. We have examined with care the instructions, and considered them with reference to so much of the testimony as is before us in the record, and are constrained to say that so little of the testimony is in the record that it seems wiser not to attempt any extended discussion of the separate instructions. The theory of the defense, as we gather it, was, that the killing was in self-defense: and it seems to us that the court in - , . . , . . _ the special instructions given at the instance oi the defendant laid down the law applicable to this defense fully and correctly. Objection is made to instruction No. 15 given at the instance of the state, on the ground that it implies that the deceased must actually have had a deadly weapon, and actually been in a position and condition to inflict great bodily harm, etc. The actual possession of a deadly\ weapon may not be essential, if the conduct of the party isl such &s to induce a reasonable belief that he has one, or is so | prepared that he can commit immediately the apprehended j injury. Yet the instruction as given may not in view of the actual facts of the case, though erroneous, have misled the jury. Again, instruction No. 2, given at the instance of the state, is criticised as involving a declaration by the court that defendant commenced the affray. While the instruction does not in terms contain such a declaration, yet we think the language might very naturally convey to the jury the impression that such was the view of the court in reference to the transaction, and unless it was an undisputed fact that defendant commenced the affray, ought to be modified. These are all the suggestions we feel warranted in making, in view of the incomplete condition of the record.

The judgment of the district court will be reversed, and the case remanded for a new trial. The defendant will be returned from the penitentiary, and delivered over to the jailor of Atchison county, there to abide the order of the district court of that county.

All the Justices concurring.